In 2005, operagoers at Berlin's Neukoellner Opera House may have experienced secondhand marijuana smoke. Performances of Camile Saint Saens' opera La Princesse Jaune (The Yellow Princess) featured onstage marijuana smoking.

The Yellow Princess tells the story of Lena and her cousin Kornelis, who has come to live with Lena's family because he is an orphan. Lena is in love with Kornelis. Kornelis is fascinated with Japan and all things Japanese.

In Scene Five, Kornelis has consumed a vial of liquid "from the Orient," which turns out to be opium. In his delirium, he declares his love for Lena, who he believes is a Japanese woman named Ming. At the end of the opera, however, Kornelis realizes he truly loves Lena and does not need opium or the imaginary Ming.

In the Berlin performance of the opera, opium apparently not being readily available, the performers smoked marijuana on stage – and encouraged the audience to do so as well. Artistic Director Bernhard Glocksin claimed the marijuana use, which was questionable at best under German law, was protected by "artistic license."

Marijuana remains illegal under federal law. However, with widespread state legalization of medical marijuana and increasing state legalization of recreational marijuana use, secondhand smoke is becoming more common in the United States. As a result, conflicts between marijuana users and those who prefer not to experience marijuana smoke are increasing.

This article discusses a recent District of Columbia (DC) case, which pitted a medical marijuana user against a neighbor who complained that marijuana smoke affected quiet enjoyment of her home.

What Happened in the DC Case?

Thomas Cackett is a DC resident who was prescribed medical marijuana to address his pain. Cackett claims he smokes marijuana in the evening to help him sleep after his shift as a restaurant manager and that weather permitting, he smokes outside.

Josefa Ippolito-Shepherd, who lives in an adjoining home, claimed that Cackett smoked much more frequently. Ippolito-Shepherd contended that she became ill due to the smoke exposure. Ippolito-Shepherd produced evidence in the form of expert testimony that involuntary exposure to secondhand and thirdhand smoke in someone's living space can contribute to several medical issues including asthma, breathing difficulties, headaches, dizziness, respiratory infections, bronchitis, allergic reactions, and even heart problems.

Before going to court, over more than a year, she had written to Cackett and his landlord and called the police. The landlord claimed Cackett was living in a non-smoking apartment, and the police informed Ippolito-Shepherd that DC law prohibited outside marijuana use – even if an individual had a prescription for medical use.

Plaintiff's Legal Theory

Both medical marijuana and recreational marijuana use are legal in DC. But marijuana remains illegal under federal law. Because federal law considers all marijuana use to be illegal, the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA), and other federal statutes prohibiting housing discrimination don't apply to medical marijuana users.

However, state and local housing discrimination laws may protect medical marijuana users where that use is legal. In those jurisdictions, tenants may have competing interests under ADA and FHA. A tenant who suffers from health issues due to marijuana smoke may have a claim for disability discrimination if the landlord or property manager doesn't provide them with a smoke-free environment. But if another tenant has a disability they treat with medical marijuana, that tenant would have a claim for disability discrimination if their landlord or property manager prohibited their marijuana use.

Ippolito-Shepherd owned her home, so fair housing laws probably didn't apply to her situation. Instead, she based her claim on loss of enjoyment of her home. Often called "quiet enjoyment," both homeowners and renters may have the right to enjoyment of their homes under state or local law.

Citing Wood v. Neuman, 979 A.2d 64, 78 (DC 2009), the Court in Ippolito-Shepherd's case noted

In the District of Columbia, "'[a] private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land'. . . '[N]ot only the interests that a person may have in the actual present use of land for residential . . . and other purposes' are protected, but also 'the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land.'"

The Court also noted that in DC, loss of enjoyment is a type of damage, rather than a claim. That technical distinction means that for Ippolito-Shepherd to collect for loss of enjoyment of her home, the defendants' actions had to be based on an independent cause of action.

Therefore, Ippolito-Shepherd claimed Cackett's marijuana use was a nuisance. Quoting Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 167 (DC 2013), the Court noted that "[l]iability for nuisance 'may rest upon intentional invasion of the plaintiff's interests, or a negligent one, or conduct which is abnormal and out of place in its surroundings, and so falls fairly within the principle of strict liability.'"

A Challenge for Property Owners and Managers

Landlords may have non-smoking provisions in their leases. But if an individual, like Cackett, has a prescription to smoke medical marijuana to treat a disability, state fair housing laws may require the landlord to permit that tenant to smoke in their apartment as an accommodation of that disability. So, it's not clear that the non-smoking provision in Cackett's lease prohibited him from smoking marijuana, as Ippolito-Shepherd claimed.

Yet, as I wrote in a previous article (How Allowing Smoking in Apartments Can Lead to a Fair Housing Violation), the landlord also may have to provide a smoke-free environment to tenants whose disability requires they live in a smoke-free environment. The need for a smoke-free environment would, in that case, likely be protected under the FHA and possibly the ADA, as well as state and local discrimination laws. But since marijuana use, even when prescribed for medical purposes, is still illegal under federal law, when considering a federal claim, marijuana use probably won't be recognized as accommodation of a disability.

These competing interests under the FHA, ADA, state fair housing laws, and federal drug laws outlawing marijuana could be a challenge for an attorney to untangle. The typical landlord and property manager may find the conflicting interests under those laws overwhelming.

Still, in addition to consulting with an attorney experienced in the area, landlords and property managers can take steps to reduce their risk:

• Be aware of state and local fair housing laws, the ADA, and FHA.

• Understand state law limitations on marijuana use, which may be different for medical versus recreational use. For example, Maryland and DC laws prohibit individuals from smoking marijuana outdoors.

• Regularly train employees about fair housing and state marijuana use laws, using examples to show how conflicts among the laws might be resolved to address all tenants' needs.

• Document requests and decisions in writing to create a record of decisions and the reasons they were made. Also, employees who must write down their reasoning are more likely to think critically about their decisions.

• Communicate with your tenants. Engage in a dialogue to understand the tenants' needs and how the landlord and tenant can best work together to address the situation. Although some tenant concerns may not be resolved, tenants will be less likely to file a fair housing complaint if they believe their concerns have been heard and why the landlord might not be able to address them fully.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.